J. S27028/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

v. :

:

PAUL BENEDICT WOLF, :

:

Appellant : No. 1383 MDA 2015

Appeal from the PCRA Order August 5, 2015

In the Court of Common Pleas of York County 

Criminal Division No(s): CP-67-CR-0008019-2013

CP-67-CR-0008983-2012

CP-67-CR-0008984-2012

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.: FILED AUGUST 12, 2016

Appellant, Paul B. Wolf, appeals from the Order entered in the York 

County Court of Common Pleas denying his second Petition filed under the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Additionally, 

Appellant’s appointed counsel, Scott A. McCabe, Esquire, has filed a Petition 

to Withdraw as counsel and an accompanying no-merit letter pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We 

conclude that all but Appellant’s double jeopardy claim were either 

previously litigated or are waived. We further conclude that, because 

 

*

Former Justice specially assigned to the Superior Court.
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Appellant’s timely-raised double jeopardy claim pertains to the legality of his 

sentence, the PCRA court erred in finding it waived. Accordingly, we affirm 

the PCRA court’s Order in part, vacate the PCRA court’s Order in part, and 

remand for an evidentiary hearing on Appellant’s double jeopardy claim. We 

deny Attorney McCabe’s Petition to Withdraw. 

The PCRA court set forth the factual and procedural history of this case 

as follows: 

In case CP-67-CR-8984-2012, the Appellant was charged with 

Theft by Unlawful Taking and Defiant Trespass. On May 10, 

2013, a jury found the Appellant not guilty. Attorney George 

Margetas represented him at this trial.

Appellant then petitioned the [c]ourt to remove Attorney 

Margetas as counsel. The [c]ourt agreed and appointed Attorney 

Christopher Moore to represent the Appellant. In case CP-67-

CR-8983-2012, the Appellant was charged with Theft by 

Unlawful Taking, Receiving Stolen Property, and Theft by 

Deception. On February 21, 2014, he pled nolo contendere to 

Receiving Stolen Property.

In case CP-67-CR-8019-2013, the Appellant was charged with 

two (2) counts of Intimidation of a Witness under 18 Pa.C.S. § 

4952(a)(1) and two (2) counts of Intimidation of a Witness 

under 18 Pa.C.S. § 4952(a)(2). On February 21, 2014, he pled 

nolo contendere to the first two (2) counts of Intimidation of a 

Witness. Attorney Moore also represented him during this 

proceeding.

[Appellant was sentenced on CR-8983-2012 and CR-8019-2013 

on February 21, 2014.]

On May 21, 2014, Appellant filed a timely PCRA petition 

(hereinafter “PCRA I”) on CP-67-CR-8983-2012, CP-67-CR8019-2013, and CP-67-CR-8008-2013, a case not at issue in this 

appeal. A hearing on PCRA I was held on September 19, 2014. 

The [PCRA c]ourt appointed Attorney Seamus Dubbs to 

represent him at this hearing. The [PCRA c]ourt denied PCRA I.
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[Appellant did not appeal the denial of PCRA I. Rather, on] 

March 16, 2015, Appellant filed a second [timely] PCRA 

(hereinafter “PCRA II”). The [PCRA c]ourt appointed Attorney 

Heather Reiner to represent him during [the] PCRA II hearing. 

On June 12, 2015, a hearing on PCRA II was held. At that 

hearing, Appellant indicated that he wished to proceed pro se. 

The [PCRA c]ourt discharged Attorney Reiner and continued the 

hearing until August 5, 2015. On August 5, 2015, the Appellant 

proceeded pro se with the PCRA II hearing. The [PCRA c]ourt 

denied PCRA II.

PCRA Court Opinion, filed 10/22/15, at 1-2. 

Appellant filed a pro se Notice of Appeal on August 11, 2015. Both 

Appellant and the PCRA court timely complied with Pa.R.A.P. 1925. 

On January 7, 2016, Appellant, still pro se, filed a Brief with this Court. 

On April 13, 2016, Appellant filed an Application for Appointment of Counsel, 

which this Court granted in part.1 Order, filed 5/6/16, at 1. The trial court 

appointed Attorney McCabe to represent Appellant in this appeal. Attorney 

McCabe was directed to file a supplemental Appellant’s brief or a TurnerFinley letter with this Court. Id.

On June 9, 2016, Attorney McCabe filed a Petition to Withdraw as 

counsel, and an accompanying Turner/Finley no-merit letter.2 Attorney 

 

1

In addition to requesting that we appoint counsel, Appellant specifically 

requested that this Court appoint counsel from outside of York County. We 

denied the request that counsel be from outside of York County. 

2 Appellant’s Brief became a legal nullity upon the appointment of counsel. 

See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (finding a pro se

Rule 1925(b) Statement a nullity where appellant was represented by 

counsel); Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) 

(holding that “[w]e will not require courts considering PCRA petitions to 
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McCabe concluded that there were no non-frivolous issues to be raised on 

appeal after addressing each of the issues raised by Appellant in his pro se

Rule 1925(b) Statement. Those issues are as follows, verbatim: 

1. Whether the court abused its discretion in denying 

Appellant's PCRA petition, regarding Appellant's timely filed 

Notice to Withdraw Guilty Plea, that the court ignored and sent 

or forwarded said notice to court appointed counsel, Christopher 

Moore, Esq. who did not address or file the Notice as requested 

by Appellant, the result being that Appellant was denied the right 

to a trial, counsel was clearly ineffective when he failed to file 

Appellant's Notice to Withdraw Guilty Plea?

2. Whether the court abused its discretion by failing to 

address Appellant's claim of Double Jeopardy, regarding the 

cases that had been consolidated by District Attorney Tom 

Kearney, Esq. on January 3, 2013, cases were consolidated[3] 

when Appellant went to his first trial, and Appellant was found to 

be not guilty by a jury of his peers, that being case no. CP-67-

CR-8984-2012, no notices or motions to sever said cases has 

ever been filed with the court, months after that trial Appellant is 

prosecuted again for the same cases, cases that were 

consolidated are as follows: CP-67-CR-8984-2012, CP-67-CR8983-2012, and CP-67-CR-7563-2011,[4

] a miscarriage of 

justice did occur, as well as Attorneys George Margetas, Esq. 

and Christopher Moore, Esq. were negligent for not raising or 

challenging this issue, as asked to do by Appellant a multiple of 

times, showing that ineffectiveness of trial counsel claims have 

merit?

 

struggle through the pro se filings of defendants when qualified counsel 

represent those defendants.”).

3 As discussed infra, Appellant attached a Notice of Consolidation in his pro 

se brief to this Court, indicating the Commonwealth’s intent to consolidate 

CR-8984-2012, CR-8983-2012, and CR-7563-2011. It is unclear from the 

record whether this Notice was ever filed with the Court. 

4 CP-67-CR-7563-2011 is not subject to this appeal, and as such, this Court 

does not have the record before us. However, we note that Appellant was 

convicted of various weapon and drug offenses in CR-7563-2011. 
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3. Appellant avers that a Constitutional violation did occur in 

regards to Double Jeopardy, and that Appellant was prosecuted 

for the same crimes twice, under 42 Pa. Cons. Stat. § 

9543(a)(2)(i)?

4. An Induced Guilty Plea, did occur when Appellant was told 

that sentences were to run concurrent, under 42 Pa. Cons. Stat. 

§ 9543(a)(2)(vi)?

5. Under 68 Pa.R.Crim.P. 1504 (now 904) requires an 

enforceable right to effective Post-Conviction Counsel, and 

Attorney Seamus Dubbs, Esq. failed to supply Appellant with 

effective counsel when he neglected to file an appeal of the 1st 

PCRA hearing, which he had knowledge of Appellant's wish to 

appeal?

6. Obstruction of Appellate Process, applies in that the York 

County did not honor the filed Notice to Withdraw Guilty Plea as 

was advised by the Court he would be allowed to do, this being 

under under 42 Pa. Cons. Stat. § 9543(a)(2)(iv)?

7. Ethical claims are also an issue that Appellant intends to 

raise, as in Com. v. Townsend, 850 A.2d 741 (Pa. Super. 2005)?

Pa.R.A.P. 1925(b) Statement, filed 9/1/15, at 1-2. Appellant did not 

respond to Attorney McCabe’s Petition to Withdraw as Counsel.

We review the denial of a PCRA Petition to determine whether the 

record supports the PCRA court’s findings and whether its Order is otherwise 

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014). “The scope of review is limited to the findings of the PCRA court and 

the evidence of record, viewed in the light most favorable to the prevailing 

party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 

2014) (citation omitted).
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Issues 1, 4, 5, 6 and 7

To be eligible for relief in a PCRA Petition, Appellant was required to 

demonstrate, inter alia, that the claims he is now raising were not 

“previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). This Court will 

find a claim was previously litigated or waived if (i) Appellant previously 

raised the issue on direct appeal or in a prior PCRA Petition; or (ii) “if 

[Appellant] could have raised it but failed to do so before trial, at trial, 

during unitary review, on appeal or in a prior state postconviction 

proceeding.” 42 Pa.C.S. § 9544. 

In addition, even claims that have not been previously litigated may 

nonetheless be deemed waived for purposes of appeal if a petitioner does 

not raise them before the PCRA court. As our Supreme Court has made 

clear, if a petitioner fails to raise an ineffective assistance of counsel claim 

before the PCRA court, that claim is waived and cannot be raised for the first 

time on appeal to this Court. See Commonwealth v. Wharton, 811 A.2d 

978, 987 (Pa. 2002) (finding waiver of a claim regarding right to counsel 

where the PCRA petitioner did not raise the issue in front of the PCRA court 

but instead raised the issue for the first time in his appeal from the denial of 

his PCRA petition); Commonwealth v. Basemore, 744 A.2d 717, 726-27 

(Pa. 2000); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”).
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Issues one and six in Appellant’s Rule 1925(b) Statement, reproduced 

supra, both address the same issue: Appellant’s desire to withdraw his 

guilty plea. Both of these issues were previously litigated and denied in 

PCRA I. See Transcript of Order, 9/19/14, at 1-2 (denying Appellant relief 

on the grounds that counsel acted pursuant to reasonable strategy and was 

not required to pursue a frivolous claim where a motion to withdraw 

Appellant’s guilty plea would have been denied). Appellant is not entitled to 

relief on these previously litigated claims, and the trial court did not err in 

denying PCRA II on these grounds. See 42 Pa.C.S. § 9543(a)(3).

In issue four, Appellant alleges he was improperly induced into 

entering a guilty plea with the promise that his sentences would run

concurrent to one another. Appellant failed to raise this claim in PCRA I, 

failed to demonstrate why this claim could not have been raised in PCRA I, 

and failed to develop it at his PCRA II hearing. Therefore, we find this claim 

waived. Id.

In issue five, Appellant alleges that PCRA I counsel was ineffective for 

failing to file an appeal after the denial of PCRA I. Importantly, Appellant did 

not raise this claim in his PCRA II Petition or at his PCRA II hearing. 

Instead, he makes this claim for the first time in his Rule 1925(b) 

Statement. Because Appellant failed to raise this claim in the PCRA court, 

we find Appellant waived this claim. See Wharton, supra; Pa.R.A.P. 

302(a).
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Finally, Appellant waived issue seven, pertaining to “ethical claims,” by 

failing to raise it in PCRA I, failing to raise it in his PCRA II Petition, failing to 

address it in his PCRA II hearing, and failing to raise it with specificity in his 

Rule 1925(b) Statement. See Wharton, supra; Pa.R.A.P. 302(a). 

Issues 3 and 4 – Double Jeopardy

Appellant raises a double jeopardy challenge, averring that his 

separate prosecutions in cases CR-8984-2012, CR-8983-2012, and CR7563-2011 were unconstitutional because the cases were consolidated, 

Appellant was then acquitted at trial in CR-8984-2012, and then 

subsequently prosecuted separately in cases CR-8983-2012, and CR-7563-

2011. The PCRA court, the Commonwealth, and Attorney McCabe all argue 

that Appellant waived any double jeopardy challenge5 by failing to raise it in 

PCRA I. This argument is erroneous as a matter of law. 

As this Court has made clear, double jeopardy claims “implicate the 

fundamental legal authority of the court to impose the sentence that it did” 

and, therefore, challenge the legality of the sentence imposed. 

Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007). As a 

challenge to the legality of Appellant’s sentence, Appellant could not waive 

 

5

Issue three clearly alleges a double jeopardy violation. In contrast, it is 

unclear from the language of issue two whether Appellant meant to allege a 

double jeopardy violation, to allege prior counsel was ineffective for not 

raising a double jeopardy violation, or both. To the extent that issue two is 

simply an ineffective assistance of counsel claim, that argument is waived. 

42 Pa.C.S. § 9544.
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this claim. Commonwealth v. Staple, 471 A.2d 847, 849 (Pa. Super. 

1984) (finding that the issue of double jeopardy could not be waived, even 

where petitioner failed to raise it at trial, on direct appeal, or in his first or 

second post-conviction petition). This is true even when an appellant has 

attempted to raise the issue in a prior post-conviction petition, so long as 

the claim has not been litigated on the merits. Id.

In support of his double jeopardy claim, Appellant attached a Notice of 

Consolidation as Exhibit 1 in his pro se brief to this Court. This Notice 

announces the Commonwealth’s intent to consolidate CR-8984-2012, CR8983-2012, and CR-7563-2011. Of those three cases, CR-8983-2012 is the 

only record currently before this Court. It is unclear from that record 

whether a motion to consolidate was ever filed with the trial court, and if so, 

how the trial court ruled on the motion. 

Importantly, no court has considered the merits, if any, of Appellant’s 

double jeopardy claim. In the absence of any developed record on this 

issue, this Court is not equipped to address this claim for the first time on 

appeal. Moreover, Appellant’s double jeopardy challenge is predicated on 

the factual and procedural history of two additional prosecutions that are not 

before this Court. In light of these deficiencies, we are constrained to 

remand so that the PCRA court may hold an evidentiary hearing to address 

Appellant’s double jeopardy claim on the merits. C.f. Staple, supra at 850-

51 (addressing the double jeopardy claim on its merits for the first time on 
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appeal where the parties had briefed the issues on the merits and where the 

facts needed to rule on the claim had been developed below).

Based on the foregoing analysis, we affirm the PCRA court’s denial of 

Appellant’s petition in part, but vacate as to Appellant’s double jeopardy 

claim and remand to the PCRA court to develop the record and address this 

claim on the merits. 

We further deny Appellant McCabe’s Petition to Withdraw, so that he 

may aid Appellant in the development of this claim on remand. 

Order affirmed in part and vacated in part. Petition to Withdraw 

denied. Case is remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/12/2016